Rethinking Diversity and Proxies for Economic Disadvantage: A First Generation Students' Project

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article argues for a renewed focus on disadvantage and social mobility in passage of the Civil Rights Act and originally advocated affirmative action, the goals of rooting out discrimination and ensuring social mobility for all Americans motivated him. Over time, these goals receded in law and policy. Courts justified affirmative action on grounds of diversity. More recently, commentators urged consideration of "class-based" affirmative action or advocated policies that favor "low-income" students. Both initiatives can help open up access to selective institutions of higher education. However, neither is a dependable proxy for disadvantage in education. Race-based affirmative action justified on grounds of diversity is a vital tool for ameliorating racial inequality, but it does not necessarily address class-based disadvantage. Class- or income-based policies do not necessarily benefit the neediest students. The demographic makeup of selective institutions of higher education today suggests that neither effort is particularly effective in ensuring social mobility. Campuses are more racially heterogeneous, but largely economically homogeneous. If the social mobility objectives of the Civil Rights Act are to be more fully realized, universities must supplement current admissions and aid policies. Today's costly, ultra-competitive, and strategically managed admissions environment makes it even more vital to create pathways for talented students from truly disadvantaged backgrounds to selective institutions. To avoid the crowding out of the neediest students, disadvantage must be identified more precisely and attacked at its roots instead of indirectly. Favorable treatment of first-generation, Pell Grant-eligible students in three areas - admissions, financial aid, and institutional outreach - can facilitate greater access for truly educationally disadvantaged students. Through initiatives focused on these students, colleges can simultaneously tackle social problems related to income, socio-culture, place, and race, advance equal educational opportunity and pursue the national interest in social mobility

Hollow Tropes: Fresh Perspectives on Courts, Politics, and Inequality

In this issue, Tomiko Brown-Nagin reviews a trio of recent books – Martha Minow‘s In Brown’s Wake: Legacies of America’s Educational Landmark, Paul Frymer‘s Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party, and Julie Novkov‘s Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1954 - brings fresh perspectives to the study of how courts, political actors, and a range of institutions have contributed to the nation‘s current mix of inequality and opportunity. Like earlier commentators, these authors recognize that court-based change is not a reliable tool of problem solving

Toward a Pragmatic Understanding of Status-Consciousness: The Case of Deregulated Education

This Article discusses the relationship between federal equal protection doctrine and the states\u27 experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states\u27 experiment with deregulated education and the Supreme Court\u27s understanding of the limitations imposed by the federal Equal Protection Clause on status-conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court\u27s skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses social problems of status-identifiable groups in ways that do not raise the specter of historically or culturally meaningful notions of racial ordering or sex-based stereotypes. Thus, legislatures might give attention to the justificatory rhetoric of diversity or the idea of students at-risk of academic failure rather than incorporating concepts like racial balance or sex-segregation in enabling legislation. Second, the federal courts should adopt a more pragmatic mode of equal protection analysis in considering claims against deregulated schools, rather than presuming that status-identifiable charter schools should be subjected to heightened scrutiny, or that heightened scrutiny requires finding such schools unconstitutional. A more pragmatic mode of constitutional analysis is justified by the public and private features of deregulated schools, which, I propose, entitle some schools to be considered quasi-public. It is also justified by the Court\u27s precedent on federalism and education, which should be understood as consistent with state legislators\u27 purpose in deregulating schools-encouraging innovative approaches to learning through participatory democracy

Civil Right Queen: Constance Baker Motley and the Struggle for Equality

The 120th John A. Sibley Lecture was delivered by Tomiko Brown-Nagin, dean of the Harvard Radcliffe Institute, Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School. Brown-Nagin is a member of the history department at the Harvard Faculty of Arts and Sciences. In 2019, she was appointed chair of the Presidential Committee on Harvard and the Legacy of Slavery. She is a member of the American Academy of Arts and Sciences, the American Law Institute, and the American Philosophical Society, a fellow of the American Bar Foundation, and a distinguished lecturer for the Organization of American Historians. Brown-Nagin frequently appears as a commentator in media. Her previous book, Courage to Dissent won the Bancroft Prize in 2011. In her latest book, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (Pantheon, 2022), Brown-Nagin explores the life and times of Constance Baker Motley, the pathbreaking lawyer, politician, and judge. The Sibley Lecture Series, established in 1964 by the Charles Loridans Foundation of Atlanta in tribute to the late John A. Sibley, is designed to attract outstanding legal scholars of national prominence to the School of Law. Sibley was a 1911 graduate of the law school